Atl. 155, 1 L. R. A. (N. S.) 272; Tkac v. Md. Steel Co., 101 Md. 179, 60 Atl. 618. Mr. Bailey, in his work on Master's Liability for Injuries to Servants, thus states the general rule, which has been approved by the courts of the states: "It is the duty of the servant, on entering upon his service, to ascertain what he is expected to do, and the dangers directly connected therewith. As stated by a learned court: 'It is the duty of the servant to exercise care to avoid injuries to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or are discernible by ordinary care on his part, as the master is to provide for him. He must take ordinary care to learn the dangers which are like to beset him in the service. He must not go blindly to his work where there is danger. He must inform himself. This is the law everywhere.' When he is a learner, and engages to work in a hazardous branch of the service, he must improve every opportunity furnished by the master to learn of his duties and their accompanying danger. If he fails, he is guilty of neglect. He must use reasonable care, in examining his surroundings, to observe and take such knowledge of dangers as can be attained by observation. In performing the duties of his place he is bound to take notice of the ordinary operation of familiar natural laws, and to govern himself accordingly. If he fails to do so, the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person using his eyes; and, if the defect is obvious and suggestive of danger, knowledge on the part of the servant will be presumed, as well as when the dangers are the subject of common knowledge. The duty of the master, in such case, is not to see that the servant actually knows. He has a right to rest upon the probability that anybody would know what was generally to be seen by his own observation. So that in building his structures or conducting his business the master Baltimore Mfg. Co., 109 Md. 404, 72 Atl. 602; Gans Salvage Co. v. Byrnes, 102 Md. 247, 62 Atl. 155, 1 L. R. A. (N. S.) 272; Eckhart v. Lazaretto Guano Co., 90 Md. 189, 44 Atl. 1017. The risk of placing his finger inside the nipple, in contact with the revolving knife, was obvious, plain, and open, and was an assumed risk on his part. The master is clearly not bound to instruct or to warn his servants against risks and dangers which that servant can appreciate. Hettchen v. Chipman, 87 Md. 729, 41 Atl. 65; Michael v. Stanley, 75 Md. 464, 23 Atl. 1094. In the case at bar, the plaintiff was instructed how to operate the machine, and was told the machine was dangerous. He was warned at times in its use, and was told not to put his finger inside the nipple because there would be danger if the nipple came in contact with the revolving knife. It is contended upon the part of the appellant there was conflict in the testimony as to whether the boy was instructed to place his finger in the nipple when operating the machine, but we do not think it sufficient, under the facts of this case, to constitute negligence, as to have taken the case to the jury. Mr. Lindsay, the plaintiff's expert, testified putting the finger inside the nipple when placing it in the vise was the right way to handle the nipple and and to operate the machine. We are of the opinion, upon a review of the whole case, that the record does not furnish any legally sufficient evidence of negligence on the part of the defendants, and there was no question for the jury to determine. The defendants' prayer withdrawing the case from the jury was properly granted, and the judgment will be affirmed. Judgment affirmed, with costs. (78 N. J. L. 490) BARNES v. E. M. WALLINGTON & CO. has the right to assume that the servant will (Court of Errors and Appeals of New Jersey. MENT. Feb. 28, 1910.) (Syllabus by the Court.) trial on two theories, the first of which is supWhen a plaintiff's case is rested at the ported by legal evidence, and the second in material part by evidence illegally admitted, and theory alone, a judgment for the plaintiff canthe case is submitted to the jury on the second not be sustained on the ground that the evidence lawfully received would have justified a finding for the plaintiff on the first theory. Error, Cent. Dig. 3406-3434; Dec. Dig. 8 [Ed. Note.-For other cases, see Appeal and 856.*] exercise, in their use, ordinary care, and not unnecessarily expose himself to hazards not necessary or usual in his employment. The APPEAL AND ERROR (§ 856*)-REVIEW-JUDGmaster's duty is met when he constructs and maintains his appliances in such manner that they are reasonably safe when prudently used. The degree of care on the part of the servant required to be exercised is such care, prudence, and caution as prudent men under similar circumstances would ordinarily exercise. Negligence in a servant may, and often does, consist in failing to know, as well as failing to do; and such is always the case when it is his duty to inform himself and know." And this rule is supported by the following cases: Linton Coal & Mining Co. v. Persons, 15 Ind. App. 69, 43 N. E. 651; Feely v. Pearson Cordage Co., 161 Mass. 426, 37 N. E. 368; 26 Cyc. 1213, § 6; Linton v. Minturn and Vroom, JJ., dissenting. Error to Supreme Court. Action by William H. Barnes against E. M. Wallington & Co. From a judgment of the Supreme Court affirming a judgment for •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes plaintiff, defendant brings error. Reversed $5 a week was payable at an undetermined for new trial. Walter H. Bacon, for plaintiff in error. Herbert C. Bartlett, for defendant in error. time in the future, and to be secured by stock of the company, and that, while the agreement as to the stock was invalid, it was severable from the cash agreement; that the latter agreement was within Wallington's general powers, and plaintiff could recover thereon under his proof at the rate of $5 per week for the period claimed. The amended to conform to this hypothetical vercourt accordingly ordered the declaration dict, and affirmed the judgment. The amendment seems to have been unnec PARKER, J. The plaintiff's declaration contained three counts. The first count alleged his employment by defendant under a contract of service at $20 per week, of which $15 was to be paid weekly in cash, and the other $5 per week to accumulate in the hands of defendant, and to be paid ultimately in stock of the defendant company; that plaintiff served 212 weeks receiving only $15 per week, at the end of which period the accumulations amounted to $1,060, which he demanded in stock, and which stock defend-point is immaterial. The error that we find ant refused to deliver, to plaintiff's damage, etc. The second count set up service for 212 weeks under an agreement to pay $20 per essary if the printed book correctly shows the original declaration; for the ground of recovery as stated by the Supreme Court is contained in the second count. But this in the ruling of the Supreme Court is the assumption that there was a verdict finding a contract to pay $5 a week in cash. The jury did not in fact and could not in contemplation of law have found such a con week in cash, of which only $15 per week was paid. The third count contained the common counts in assumpsit. The trial judge evidently viewed the tes-tract; for, as has already been noted, the timony as bearing on the first count alone, for he charged the jury as follows: "Gentle men, if from the testimony in this case you believe that the wages of the plaintiff were at the time alleged increased from $15 to $20 a week, to be paid in stock of the company, and that the stock is worth par, then you will render a verdict in favor of the plaintiff for $1,060 with interest from May 1, 1904; if, on the other hand, you believe that his wages were not increased, but were to remain at $15 a week, then your verdict will be simply for the defendant. The burden of satisfying you as to this increase in salary is upon the plaintiff, who makes the allegation. He must convince you by the preponderance of the testimony that that was so." The de fendant duly excepted to the first part of the charge, permitting a recovery, and at the trial had objected and excepted to the admission of testimony as to the alleged con tract with plaintiff by E. M. Wallington, who was the treasurer and manager of defendant, in the absence of proof that Wallington had some special authority to make such a contract. sole theory on which the case was submitted by the trial court was that of a contract payable in stock, so that the ground of re covery set up in the second count, or in the amendment, as the case may be, to wit, a contract for payment in cash, was not submitted to the jury at all. Under the instruction permitting the jury to find for the plaintiff solely on the theory of a contract to pay in stock, the theory of a contract for payment in cash was necessarily excluded from the consideration of the jury, and hence the judgment for the plaintiff cannot be sustained on the ground that the evidence would have warranted a verdict for the plaintiff on the latter theory. Fielders v. North Jersey Street Railway Co., 68 N. J. Law, 345, 53 St. Rep. 552; Hayes v. Adams Express Co., 74 N. J. Law, 537, 541, 65 Atl. 1044; Doran v. Thomsen, 76 N. J. Law, 754, 760, 71 Atl. Atl. 404, 54 Atl. 822, 59 L. R. A. 455, 96 Am. 296, 19 L. R. A. (N. S.) 335. The error of admitting evidence that a contract to pay in stock was made by Wallington, without proof of his authority to make it, and of submitting this evidence to the jury, consequently remains. The judgment of the Supreme Court and of the circuit court will therefore be reversed, and a venire de novo awarded. MINTURN and VROOM, JJ., dissenting. The Supreme Court held, when the case was before them on writ of error, and we think properly, that if the promise proved was to pay the $5 a week reserved in stock of the company, "no recovery could be had, for there was nothing in Wallington's position as manager or officer of the company which would authorize him to bind the company to issue stock to an employé in pay for services, and no special authority conferred (Court of Chancery of New Jersey. Jan. 15, upon him by the company to make such a bargain was shown." But the court also held that there was enough in the plaintiff's case to have justified the jury in finding a contract to pay $20 a week in cash, of which (75 N. J. E. 102) SWIFT v. CRAIGHEAD. 1909.) 1. TRUSTS (§ 198*)-SALE BY TRUSTEE TO HIMSELF-VALIDITY. Public policy is opposed to the unrestricted right of a trustee to acquire the property of a cestui que trust, and a sale by a trustee to himself of the trust property is voidable at the option of the cestui que trust, though the trustee may have given an adequate price and gained no advantage. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 258, 260, 261; Dec. Dig. § 198.*] 2. TRUSTS (§ 283*)-SALE OF TRUST PROPERTY TO TRUSTEE BY CESTUI QUE TRUST. Where trust property has been acquired by a trustee by direct dealing with the cestui que trust, the dealings are presumed to be invalid, but will be supported if the trustee can establish that the cestui que trust acted voluntarily, and with freedom from any influence arising from the trust relation, and with intelligence and full knowledge of all the circum stances. [Ed. Note.-For other cases, see Trusts, Cent. Dig. $$ 403, 404; Dec. Dig. § 283.*] plainant executed the revocation of trust, and thereby in effect conveyed practically her entire estate to her mother, she had no definite knowledge of her mother's ultimate purpose, and no defined purpose of her own, other than to comply with her mother's request. For years the mother had been, not only complainant's trustee, but the dominant factor in her life, and I do not believe it can be reasonably said that at the time of the execution of the instrument in question complainant was in any complete sense a party to an intelligent, or well-considered, and voluntary engagement. Her act was, in my judgment, merely responsive to her mother's expressed wish, without thought or concern of consequences. I think that the trust assets must be now treated as having been vested in the Bill by Mary L. Swift against Robert D. Craighead, individually and as executor. Decree for complainant. Affirmed as per follow-mother until her death for the benefit of coming case on this page. See, also, 70 Atl. 666. LEAMING, V. C. Defined principles of public policy are clearly opposed to the unrestricted right of a trustee to acquire the property of a cestui que trust. A sale by a trustee to himself of the trust property is uniformly held to be voidable at the option of the cestui que trust, even though the trustee may have given an adequate price and gained no advantage. Scott v. Gamble, 9 N. J. Eq. 218, 235; Obert v. Obert, 10 N. J. Eq. 98, 103; Huston v. Cassedy, 13 N. J. Eq. 228; Smith v. Drake, 23 N. J. Eq. 302, 306; Romaine v. Hendrickson's Ex'rs, 27 N. J. Eq. 162, 164; Staats v. Bergen, 17 N. J. Eq. 554. But, where trust property has been acquired by a trustee through the medium of direct dealing with the cestui que trust, it is manifest that the right of the cestui que trust to avoid the contract should not be without limitation. While some courts have held such dealings to be contrary to public policy, and voidable at the instance of the cestui que trust, the better and prevailing view appears to be that such dealings are presumed to be invalid, but will be supported if the trustee can establish that the cestui que trust acted voluntarily, and with entire freedom from any influence arising by reason of the trust relationship, and with intelligence and full knowledge of all the circumstances. Coles v. Thecothick, 9 Ves. Jr. 234; Nichols v. McCarthy, 53 Conn. 299, 23 Atl. 93, 55 Am. Rep. 105; Perry on Trusts, § 195; Fetter on Equity, p. 146, § 93; 1 Lewin on Trusts, 275, 277. In the present case I am convinced that defendant has not sustained the burden thus imposed. I am satisfied that when com plainant, and that complainant will now be entitled to an accounting from defendant. I share the view of defendant's counsel that complainant's best interests may lie with the present trusteeship; but I am unable to give that consideration a controlling effect. If the revocation of the original trusteeship was not the free, voluntary, and intelligent act of the cestui que trust, she is entitled to be relieved of it, even though the ultimate benefit to her may be doubtful. At the hearing I entertained doubt as to the sufficiency of the bill; but as the instrument set up in the answer by way of bar, when considered in connection with the admissions of the trusteeship, is not operative as a bar until its presumption of invalidity is overcome, I am satisfied that the general replication is sufficient, without an amendment to the bill making a direct attack upon the instrument set forth in the answer. (76 N. J. E. 339) SWIFT v. CRAIGHEAD. (Court of Errors and Appeals of New Jersey. Nov. 15, 1909.) Appeal from Court of Chancery. Bill by Mary L. Swift against Robert D. Craighead, Jr., individually and as executor of Mary A. Sloan, deceased. Heard on bill and plea. Plea overruled (75 Atl. 974), and defendant appeals. Affirmed. S. Cameron Hinkle, for appellant. Bleakly & Stockwell, for respondent. PER CURIAM. The order appealed from is affirmed, for the reasons stated in the opinion delivered in the court below by Vice Chancellor Leaming. 75 Atl. 974. SWAYZE and PARKER, JJ., dissent. •For other cases see same topic and section NUMBER in Dec. & Am. Digs, 1907 to date, & Reporter Indexes (78 N. J. L. 658) At the trial the evidence tended to show AMERICAN PROCESS CO. v. PENSAUKEN the facts following: On June 22, 1906, the BRICK CO. Pensauken Brick Company entered into a (Court of Errors and Appeals of New Jersey. written contract with the Standard Brick Feb. 28, 1910.) (Syllabus by the Court.) L. APPEAL AND ERROR (§ 219*) — REVIEW FINDINGS. An allegation that a trial judge, sitting by consent without a jury, erroneously found for the plaintiff, will not be considered on error where there was no request to find otherwise and no exception to the actual finding. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1324; Dec. Dig. 8 219.*] 2. EVIDENCE (§ 143*)-MATERIALITY. Proof of any facts essential to the plaintiff's recovery is material to the issue. [Ed. Note. For other cases, see Evidence, Cent. Dig. $$ 424-428; Dec. Dig. § 143.*] 3. EVIDENCE (§ 148*)-COMPETENCY. Where the plaintiff proposed to introduce in evidence a letter material to the issue signed by an individual as president of the defendant company, it was competent for the plaintiff to show that such individual was president of the defendant company in fact. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 148.*] 4. APPEAL AND ERROR (8 1050*)-HARMLESS ERROR ADMISSION OF IMMATERIAL EVIDENCE. The admission of immaterial evidence which does no injury is no ground for reversal on error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4153; Dec. Dig. § 1050.*] 5. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. It is not reversible error for a trial judge to permit an attorney to be asked whether he on behalf of his client promised to pay a disputed claim, where the only objection stated was that the question was immaterial; there being no objection that the attorney lacked express authority. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4153; Dec. Dig. § 1050.*] 6. EVIDENCE (§ 148*)-COMPETENCY. It is material and proper for the plaintiff to show by an attorney who promised on behalf of the defendant to pay a disputed claim that he had previously gone to his client, the defendant, for instructions. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 148.*] Error to Supreme Court. Action by the American Process Company against the Penṣauken Brick Company. Judgment for plaintiff, and defendant brings er ror. Affirmed. Mahlon Van Booskirk and John W. Wescott, for plaintiff in error. French & Richards and Abraham Tulin, for defendant in error. TRENCHARD, J. This writ of error brings up for review a judgment rendered by the trial judge sitting without a jury at the Camden circuit in favor of the American Process Company against the Pensauken Brick Company for breach of contract. Machinery Company for the purchase of the machinery necessary for the conduct of the brick making business of the Pensauken Company. One item of the machinery thus contracted for was an "American Process Sand Drier." By the terms of the contract the buyer was not to acquire title to any part of the machinery until the whole agreed price was paid. To fulfill its contract, the Standard Brick Company purchased of the American Process Company an "American Proshould remain in the seller until the full cess Sand Drier," on the condition that title purchase price was paid. This drier was delivered and installed in the plant of the Pensauken Company, but the full purchase price was never paid. On November 26, 1906, the American Process Company notified the Pensauken Company of the condition of the contract relative to payment for the drier be tween the Standard Brick Company and the American Process Company. This notice was duly and without protest acknowledged the next day. Thereafter further notice was given that the American Process Company would reclaim the drier under the provisions of the two contracts respecting title, unless the balance of the purchase price was paid. This notice and demand for payment resulted, after some negotiation, in a demand by the Pensauken Company that the American Process Company obtain an order from the Standard Brick Company for the amount of its claim. This request was at once complied with, and receipt of the order was duly acknowledged by the Pensauken Company on February 16, 1907. Payment then not being made, suit was threatened, and on March 29, 1907, the Pensauken Company made a definite promise to pay on the delivery to it of another order from the Standard Brick Company. This order was at once delivered. On April 1, 1907, the Pensauken Company, by its attorney, acknowledged receipt of the second order, and asked two weeks' time in which to make payment, definitely promising ican Process Company at once granted this to pay at the end of that time. The Amerrequest, agreeing not to bring suit until after the expiration of the two weeks. When that time expired, the claim was still unpaid, and, in answer to a further letter threatening suit, the Pensauken Company, by its treasurer, wrote on April 19, 1907, that "this matter will be positively adjusted in the course of a few days." Subsequently, the claim not being paid, this suit was brought by the American Process Company against the Pensauken Company upon the promise to pay the balance due upon the contract price of the drier, and judgment was rendered for the plaintiff. for instructions as to how to proceed and what propositions to make. It was objected that the question was immaterial and improper. We think it was not. Whether the propositions of settlement made by him on behalf of his client were binding or not depended upon the character and extent of his authority. It was therefore material and proper to show that he went to his client for instructions. The defendant below assigns as its first | whether he went to the defendant company reason for reversal that the trial judge, sitting without a jury, "gave a verdict for the plaintiff." By virtue of this assignment the defendant company seeks to raise the question whether there was proof which would justify the finding by the trial judge of authority upon the part of the attorney and officers of the company to bind it to pay the balance of the contract price of the drier. But this cannot be done because there was no request to find made to the trial judge nor was there any exception to his actual finding. We have examined all other assignments of error argued, which have exceptions to support them, and find no merit in them. The judgment of the court below will be affirmed (78 N. J. L. 687) STATE v. WARADY. The next assignment of error is that the trial judge allowed the plaintiff to put to the witness Hesser and have answered questions as to whether the drier was delivered by the American Process Company to the Standard Brick Machinery Company, and by the latter company to the defendant company, whether (Court of Errors and Appeals of New Jersey. the drier was paid for, and as to what partial payments were made, and when they were made. It was objected that the evidence 1. CRIMINAL LAW ( 80*)-PRINCIPALS AND was not material. We think it was. Proof of such delivery and nonpayment was essential to the plaintiff's recovery. The next error assigned is the allowance of a question put by the plaintiff's attorney as to what office Mr. Donnelly held in the defendant company. This was objected to as incompetent. We think it was competent. The plaintiff proposed to put in evidence a letter material to the issue signed by Donnelly as president of the defendant company. It was therefore clearly proper to show that he was president in fact. It is next said that there was error in the admission of evidence offered by the plaintiff as to the condition of the drier when it was received by the Standard Brick Machinery Company. It was objected to as immaterial. If this be conceded, yet clearly it did the defendant no injury, and its admission is no ground for reversal. Schenck v. Cuttrell, 21 N. J. Law, 5. Feb. 28, 1910.) ACCESSORIES ABETTING CONVICTION OF In an indictment for having feloniously, moved, procured, aided, abetted, counseled, willfully, maliciously, and unlawfully incited, hired, and commanded A. B. to commit the crime of bigamy, it is not necessary to prove crime; bigamy not being a felony under the conviction of A. B. of having committed said law, and therefore one who aids in its commission being chargeable as principal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 103-111; Dec. Dig. § 80.*] 2. CRIMINAL LAW (§ 429*)-EVIDENCE-MINUTES OF CLERK. The minutes of court proceedings kept by the clerk are competent evidence of those proceedings until the formal record is made up. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. 429.*] Error to Supreme Court. Louis Warady was convicted of having aided and abetted the commission of the crime of bigamy; and, from a judgment of the Supreme Court affirming the same (72 Atl. 37), he brings error. Affirmed. John H. Backes, for plaintiff in error. William J. Crossley, prosecutor of the pleas, for the State. The next assignment of error is that there was error in permitting the question to be asked of Mr. Van Booskirk whether he on behalf of his client promised to pay the plaintiff the claim in question on the production of an order from the Standard Brick Machinery Company. This was objected to PARKER, J. The plaintiff in error was as immaterial. We think it was not. It had convicted upon an indictment charging him already appeared that the witness represent- with having "feloniously, willfully, malicioused as attorney the defendant company in ly, and unlawfully incited, moved, procured, these negotiations with respect to the mat-aided, abetted, counseled, hired, and comter in controversy. If he had express authority to compromise the claim, his agree ment would bind his client. Trenton St. Ry. Co. v. Lawlor, 71 Atl. 234. There being no objection that he lacked the requisite authority, the admission of the question was not reversible error. It is next urged that there was error in permitting Mr. Van Booskirk to be asked manded" Michael Kiss and Emma Papp to commit the crime of bigamy. The Supreme Court affirmed this conviction in error, and a further writ of error brings the case into this court. It is stated in the Supreme Court opinion that the entire record is returned pursuant to section 136 of the criminal procedure act of 1898 (P. L. p. 915), but on examination of For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexen 75 A.-62 |